Sunday, February 05, 2012

Super Catch Up Edition

Here's the thing about blogging: It takes time that I do not always have. But, I do enjoy doing it and I know that many people read the blog and, to some extent, rely on it for current and useful info. So, I am going to spend some time between entertaining commercials and a potentially boring football game to catch up. That means that this won't be the most detailed post.

CIT Orders Appraisal in Penalty Case

In United States v. Callanish, the Court of International Trade seems to be trying very hard to dispose of a penalty case, but is frustrated by procedural issues. Specifically, the case involves an effort to secure a default judgment against an importer. However, the Court pointed out previously that it needs to know the domestic value of merchandise to assess the penalty. As a result, it ordered the United States to move to amend its complaint with well-pleaded facts establishing value.

In its amended complaint (and I am skipping over an issue about how that amendment was accomplished), the United States asserted that the domestic value of the merchandise was calculated as twice the invoice price. The government relied on 19 CFR 162.43(a) for support. The Court, however, noted that domestic value must be based on the price at which such or similar merchandise is freely offered for sale in the ordinary course of trade. According to the CIT, Customs and Border Protection's appraisal worksheets only provide a conclusion as to the alleged appraisal and fail to provide any facts on which the Court can find that conclusion to be true. As a result, the Court remanded the case for further proceedings consisting of a new appraisal.

In reality, it seems that what the Court wants is an explanation of the appraisal, although Customs can certainly come back with a different number based on a new appraisal.

No Support, No CDSOA Money

I usually give short shrift to trade cases here, when I cover them at all. This is no exception. In Ashley Furniture Indus. Inc. v. United States, a three-judge panel of the Court of International Trade held that a domestic producer of wooden bedroom furniture who opposed the antidumping petition on merchandise imported from China is not entitled to share in the distribution of funds under the Byrd Amendment (A/K/A the Continuous Dumping and Subsidy Offset Act). Once it was determined that the plaintiff had opposed the petition, it was in a hole from which it could not escape (at least according to the CIT). An interesting aspect of the decision is the discourse on whether the Supreme Court's decision in Citizen United, means that the CDSOA improperly burdens political speech my a corporation. It is a good argument, but does not gain traction with the CIT.

Similar issues were discussed in Ethan Allen Global, Inc. v. United States.

Epoch Designs

Epoch Designs LLC v. United States is about the amount of antidumping duty to be assessed on a single entry of wooden bedroom furniture from China. Because there was no dispute about whether the merchandise was subject to the case or the calculation of the margin, this was all about how Customs and Border Protection assessed the duty at the time of liquidation. The underlying problem was that Commerce failed to initially list the separate (and lower) rate for the relevant exporter. Although corrected liquidation instructions were issued, Customs and Border Protection liquidated the entry at the 198% China-wide rate.

While cases involving antidumping and countervailing duties are typically brought to the Court on review of an International Trade Commission or Commerce Department determination, this is a relatively simple customs case. The plaintiff filed a protest challenging Customs' liquidation of the entry at the higher rate in contravention of the amended instructions. In most cases, that would be likely result in an approved protest and refund. However, there were issues here.

First, at the time of this entry, a protest had to be filed within 90 days of the liquidation. Today, the relevant period is 180 days. Epoch filed its protest about six months after liquidation, and outside the required period. The reason for this is likely that even though this was a 2004 entry, liquidation did not occur until 2008, four years after the change to the 180-day protest period. Unfortunately, the applicable limitations period is based on the entry date. On top of that, it appears that at the time the summons was filed, Epoch had not paid all the liquidated duties, charges, or exactions" applicable to the entry. This is also a jurisdictional requirement. See 28 USC 2637(a), if you want to check. That created a second independent reason for the Court of International Trade to dismiss the case.

Lastly, since the protest was an available and not manifestly inadequate avenue for relief, the plaintiff could not rely on the Court's residual jursdiction (28 USC 1581(i)) to get into Court.

5 Minutes to Kick Off

Surprisingly, I finished this up before kick off. Enjoy the game, the commercials, and Madonna.

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